Gay marriage, public opinion and the 14th Amendment

Project Right Side, a pro-gay-rights 501(c)(4) organization, is out with a memo summarizing polling on same-sex marriage and other issues. The group reports that, in battleground-state polling on Election Day 2012, 62 percent of respondents said the federal government should recognize same-sex marriages if the state does. Support for gay marriage is up among every demographic group, including Republicans (+18 points), white evangelicals (+24) and conservatives (+23). This backing is not just generational, although more than 80 percent of those under 30 support gay marriage. For every voter in the past 10 years who became an opponent of gay marriage, nine became supporters.

Demonstrators at the Supreme Court. (Kris Connor/Getty Images)

This came during a time when the Supreme Court had not ruled that same-sex marriage is protected under the 14th Amendment, and while states were enacting a variety of measures furthering recognition of same-sex marriage. Gay-marriage advocates made gains by interacting with fellow citizens and convincing them of their views. A sea change in attitudes about gays and gay marriage has transformed the country on a major social issue in record time.

This comes as the Supreme Court may, as it did in the abortions arena, take marriage out of the public arena and render it constitutionally protected. Former Republican National Committee chairman and gay-marriage advocate Ken Mehlman, in a conference call to present the data, argued that this is akin to court decisions that made Second Amendment and First Amendment cases binding on the states and notes that 14 cases have held marriage to be “fundamental.” But of course the First and Second Amendments specify which rights are at issue, and those earlier cases don’t speak to gay marriage. Hence it is far from clear whether the Supreme Court will, in essence, mandate recognition of same-sex marriage. I asked Mehlman if he might lose support from Republicans and conservatives who resent the court deciding major social policy issues. He argued that gay marriage wouldn’t be so affected, citing “continuous” decisions at the state and lower federal court level that required recognition as public opinion shifted.

Perhaps, but gay-marriage opponents have gotten most of their mileage during a time when persuasion was the main mover of opinion. As a strategic matter, it may well be that allowing the public discussion and the political process to work its will can avoid the sort of backlash against judicial imperialism that energized the right after Roe v. Wade.

Former conservative 10th Circuit judge Michael McConnell leans that way as well in a compelling op-ed. He argues: “We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution.” He argues that the Proposition 8 case might be pushed aside on the grounds there is no standing since the state of California is not defending it, while the other Defense of Marriage Act case could be decided as follows:

The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). . . . If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question.

That is not going to satisfy DOMA supporters who bizarrely claim no police power to regulate health care but find nothing objectionable with bypassing a state law that confers same-sex marriage and imposing a federal definition of marriage. It won’t satisfy the pro-gay-marriage activists who consider this a “fundamental right” akin to other rights that cannot be trampled by popular vote. But it does give pro-gay-rights advocates all the space they need to continue the remarkable, and in my book, heartening progress of inclusion. And in the long run, McConnell is certainly right that “when all of us have an equal right to be heard on an issue, and to participate through our representatives in making the decision, it is easier to accept the outcome than when unelected judges make moral pronouncements from the bench. Change that comes through the political process has greater democratic legitimacy.”

And if the last decade is any gauge it won’t take that long.

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